Maryland’s Underage Sexting Case: Punishing Revenge Porn Victims?

Abstract

In 2019, the US State of Maryland’s highest court upheld the conviction of a 16-year-old minor for distributing her own ‘child pornography’ when she privately sent a clip of her performing a (completely legal) sexual act to a social media group of which only she and her two best friends were members. Considering that the child porn statute was never meant to prosecute legal and consensual sexting, this criminalization appears to be contra legem in light of the fact that the Court would not have regarded it as an offence if the girl was two years older (which does not make any difference to the legality of the sexual act since the age of sexual consent in Maryland is 16). The Court’s penalization of this act of sexting seems inappositely puritanical especially when it is noted that the convict was a victim of ‘revenge porn’ since one of the two friends leaked the clip in her school in an apparent act of revenge after their friendship ended. This paper analyses both the majority and dissenting opinions of this 2019 judgment to come to the conclusion that the majority ignores the true purport of the US Supreme Court decisions and wrongly invokes the doctrines for interpreting legislative intent to buttress its stance. As Maryland has criminalized acts of ‘revenge porn’, this article’s focus extends to examining how the Court’s failure of factoring in the effect of Maryland’s ‘revenge porn’ statute in discerning the legislative intent of the ‘child porn’ statute has produced an aberration of a statutory interpretation.